Dehn v. Thompson

• Decision Date: 05 June 1944
• Docket Number: No. 20462.,20462.
• Parties: DEHN v. THOMPSON.
• Court: Missouri Court of Appeals

181 S.W.2d 171

DEHN v. THOMPSON.

No. 20462.

Kansas City Court of Appeals. Missouri.

June 5, 1944.

Appeal from Circuit Court, Gasconade County; R. A. Breuer, Judge.

"Not to be published in State Reports."

Action by Louis Dehn against Guy A. Thompson, trustee, Missouri Pacific Railroad Company, for injuries sustained as passenger of automobile in railroad crossing collision. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

Thomas J. Cole, of St. Louis, James A. Potter, of Jefferson City, Leon P. Embry, of California, and H. L. Stolte, of Hermann, for appellant.

Wm. Wessel, of Hermann, and Leo A. Politte, of St. Louis, for respondent.

SPERRY, Commissioner.

Plaintiff, Louis Dehn, sued defendant, Guy A. Thompson, Trustee, Missouri Pacific Railroad Company for damages growing out of personal injuries received when an automobile in which he was riding ran into the side of a train at a highway crossing. Verdict and judgment were for plaintiff and defendant appeals.

The collision occurred on U. S. Highway 66, near Kirkwood, in St. Louis County. The highway, at this point, runs east-west. Defendant's railroad runs north-south, crossing the highway. Defendant, for more than ten years prior to the collision, had maintained an electric flasher stop sign at this crossing. The highway is straight, is of concrete, and carries four lanes of traffic. It traverses a rather high hill, the crest of which is about one-half mile west of the crossing and, when the flasher lights are working at the crossing, they can be seen by east bound traffic from the crest of the hill. There was glare ice on the highway at the time of the collision and this made automobile driving hazardous. The collision occurred at about 6 a. m., December 2, which was before daylight. The moon was not shining and it was dark.

Plaintiff's witness, Nunn, testified to the effect that he was driving a truck loaded with about 10000 pounds of hogs; that he was familiar with this crossing, that defendant had, for many years, maintained an electrically lighted stop sign, facing east bound traffic, and that said sign could be seen from the crest of the hill, one-half mile west of the crossing; that as he approached the crossing, at a speed of 30 miles per hour, the sign was not lighted; that he discovered that the crossing was blocked by a moving train but was too close to stop before striking it; and that his truck struck the train. The impact of this collision broke the train, threw the air brakes into "emergency," and stopped the train, derailing four cars. About 93 cars, with the engine, were south of the crossing, and some 15 or 18 were north; and the crossing was left blocked by a coal car of a dark, red, brown, dirty color.

Nunn further stated that not less than 10 and not more than 20 minutes after the collision occurred he saw the automobile in which plaintiff was riding approaching from the west; that he attempted to flag it down but was unable to get to the pavement in sufficient time to do so; and that said automobile collided with the coal car on the crossing. He stated that no signal light or warning of any kind was displayed or given at the crossing during the time intervening between the truck collision and the automobile collision, and that no member of the train crew arrived on the scene until some 5 minutes after the automobile had crashed into the stationary coal car.

Plaintiff testified to the effect that he was, at the time of the collision, living at Union, Missouri, and was working in St. Louis; that he and two others, Altemeyer and Wansing, drove daily from their homes at Union, over Highway 66, to St. Louis, and returned at night; that on the morning of the collision he was riding in an automobile owned and operated by Altemeyer; that they set out from Union earlier than usual because the road was covered with ice and driving was hazardous; that as they approached the crossing they were proceeding at a speed of about 30 miles per hour; that he was riding beside the driver and was looking ahead; that he was familiar with the crossing and knew of and relied on the operation of the electric flasher light to warn of a train on or approaching the crossing; that no light or other signal or warning was given; that when the automobile was about 100 feet from the crossing he observed that there was something on the crossing; that Altemeyer, the driver, applied the brakes at about that same time; that plaintiff did not protest to Altemeyer as to speed, nor warn him of anything on the crossing; that he identified the obstruction on the crossing as a coal car when the automobile was 60 to 80 feet from it; that the automobile could not have been stopped, at the speed at which it was traveling, due to the ice on the pavement, within less than 150 feet; that the lights of the automobile were good, were burning, but were deflected down toward the roadway; that the lights were so adjusted because of the slippery condition of the road; that the light shone on the pavement 125 feet ahead of the automobile; that dark objects, 2 feet high, could have been seen 165 feet ahead, and that light colored objects could have been seen 200 feet ahead. He also stated that the car could have been stopped within about the distance that the driver could see ahead.

Altemeyer testified to the effect that he was driving at a speed of about 20 to 30 miles per hour as he approached the crossing; that he was familiar with the crossing and knew that defendant had, for many years, maintained an electric stop and flasher light there to warn east bound traffic of trains on or approaching the crossing; that he relied on said signal; that no signal or warning of any kind was given to appraise him that the crossing was blocked; that he first discovered the obstruction when the car was about 90 or 100 feet from the crossing; and that he was wholly unable to bring the car to a stop in time to avoid the crash within that space, due to the icy condition of the roadway.

Testimony of employees of defendant tended to prove, or at least inferences could be drawn from their testimony, that they were familiar with this crossing and with the location of the train at the time it stopped; that they knew the train obstructed the crossing after it stopped; that the engine remained stationary for a period of about 10 minutes after it stopped, and then proceeded with the part of the train which was south of the crossing, on into the yards, leaving some 15 or more cars behind, including the coal car; and that no signal or warning was given or provided during the entire period the crossing was blocked.

There was no evidence tending to prove how long the flasher lights had been out of operation prior to the time when Nunn first came within sight of the crossing; but it is undisputed that when the cars were derailed one of them passed over the relay box from which the lights are operated and completely demolished same. The evidence is clear that, from that time until plaintiff was injured, a period of from 10 to 20 minutes, no warning light or other signal or warning was given at this crossing, although it was completely blocked.

Defendant contends that its demurrer offered at the close of all of the evidence, should have been given for the reason that there was not sufficient evidence in the record to justify submission. In disposing of this contention only the facts in evidence, most favorable to plaintiff's theory of recovery, have been stated and are accepted as true. From said facts the jury could have believed that defendant was negligent in not having taken steps to provide substitute warning devices, or other...